::: * Journal for Legal History Studies
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第23期 Issue: 23 period
Date: 2013/08

Articles Kao, Ming-Shih Fairness –the Ideal of East Asian Traditional Legal System
Zheng, Xian-wen From Fa Jing in the Qin Period to the Nine Chapter Law composed by Xiao He in Han Dynasty and Pong Chapter Law-A New Analysis of the development of Qin-Han legal system
Huang, Yuan-Sheng Between Li and Xing: From Maintenance Lack to Abandonment of Lineal Ascendant
Chen, Den-Wu Confucianism Thought of Bai Jü Yi’s Bai-Dao Legal Precedent
Chen, Hwei-Syin Confucianism and the legal system in Qing dynasty – the legal history point of views
Min, Dong-Fang An Analysis of the Increase and Decrease in the Death Penalty Articles and the Death Penalties in Qing Code
Articles & Replies Review Chang, Ming The Property Crime Cases of Qin and Han Dynasty Collected in Zou Yan Shu
Bu, Qing-Rong Research on「Permission for Leave」In Yuan Dynasty From Legal Perspective
People & Book Review Deng, Jian-peng, Liu, Xiong-tao The Difficult Position of Assumption, Standpoint and Function Approach: Rethinking Qu Tongzhu’s Research

 


Fairness –the Ideal of East Asian Traditional Legal System

Kao, Ming-Shih

Abstract

“Fairness-leading- to- Peace” could be said to be the highest ideal of Chinese traditional legal system. There is an old Chinese saying to confirm this: “peace and harmony achieved under the Heaven is the highest achievement of the human beings”. As far as the legal system was concerned, how could we reach this ideal of fairness? The Summaries of the Four Treasures mentioned: “It is said that since the constitution of Tang legal code was based on “rituals”, when the judgments were delivered, the justice and fairness was served.” This is in fact a very profound analysis. It implies that “legal codes”, “rituals” and “fairness” were core content of The Tang Legal Codes and Their Accompanying Regulations” . And “fairness” was the object of both the “legal codes” and “Rituals” were intended to achieve.

This objective was to establish a harmonious society based on a hierarchy of status and was also a characteristic feature of Chinese Legal System (also known as East Asian Sphere of Law Culture). This was very different from those of Western societies which has been based on the individual equal rights. However, there is one common ground shared by both the East and West. That is: fairness and justice were, to some extent, taken very seriously both by traditional East Asian and modern West.

Keywords: Peace, justice, rituals, legal codes, Chinese Legal Systems, a hierarchy of status

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From Fa Jing in the Qin Period to the Nine Chapter Law composed by Xiao He in Han Dynasty and Pong Chapter Law-A New Analysis of the development of Qin-Han legal system

Zheng, Xian-wen

Abstract

The legal system in Ancient China experienced the development of legal form from Fa Jing, Lv and Ling in Warring States and Qin period to Lv and Ling in Han period. The discoveries of Qin Bamboo Slips Unearthed at Yun-meng, Bamboo Slips Buried in the Han Dynasty Tomb in Zhangjia Shan—The Second Year Law as well as those documents handed down for generations: We Shu Preface, Wei Shu Treatise on penal law, Tang Law and etc. explicitly record the affairs described in Fa Jing composed by Li Kui in Warring States, which indubitably indicates that it was Li Kui who came from Wei state that laid out Fa Jing Six Chapters. Moreover, Shang Yang who used to be subjected to Wei state also contributed to the introduction of Li Kui’s Fa Jing Six Chapters. Although there were records about Shang Yang “change Fa into Lv” in ancient documents it was still a usual practice that people called Fa Jing six chapters as Qin Law or Qin Fa Jing. Lv, Fa and Ling these three Qin Dynasty dictions appear repeatedly in Qin Bamboo Slips Unearthed at Yun-meng. Based on this discovery, I believe that the “Fa” mentioned above is exactly the Qin Fa Jing six chapters and these three dictions are the core of Qin Dynasty’s legal system. Recent years, some domestic and overseas scholars hold the view that Western Han Dynasty Xiao He did not compose Nine Chapter Law, while according to my combing of Chinese historical textual documents such as Han Shu, Shi Ji and other related materials, I take for granted that from the first year of Han era(206 B.C.) Liu Bang entered the central Shaanxi plain to 202 B.C. he eventually unified China, there were three activities about modifying legislation in big scales: firstly, at the first year of Han era, Han Gao Zu Liu Bang primarily promulgated a “Three-point Law”; the second time was from the second year of Han era (205 B.C.) to the year Han Gao Zu unifying China, the prime minister of Han---Xiao He drafted Nine Chapter Law, based on the recomposing of Qin Fa Jing six chapters and three Qin Lv: Xing, Jiu and Hu, which created and established a new legal system style that was composed of Fa and Lv; the third time happened after Han Gao Zu unified China, he ordered Xiao He to revise legislation and Han Xin to declare military law. The revision of legislation settled the foundation of “Pong Chapter eighteen Chapters” and it is opposite with the record of Jin Shu Xing Fa Zhi which declares it was Shu Suntong that composed “Pong Chapter eighteen Chapters”.

KeywordsQin Fa Jing, Qin Bamboo Slips Unearthed at Yun-meng, Fa Lv Ling, the Second Year Law, Nine Chapter Law

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Between Li and Xing: From Maintenance Lack to Abandonment of Lineal Ascendant

Huang, Yuan-Sheng

Abstract

Filial piety, which has long been held in high esteem in traditional Chinese society, is considered to be the origin of all virtues. It is also thought to be the base of Ren (仁) by Confucian Analects, and held as a ruling principle through dynasties. Alongside the political power, filial piety is promoted and practiced overwhelmingly in every way: family honor, tax break, title confering, punishment exemption, etc., which is recorded in Zhi Guan Zhi (職官志, Officialdom Essays), Xuan Ju Zhi (選舉志, Examination Essays), Xiao Yo Zhuan and Xiao Yi Zhuan (孝友傳及孝義傳, Filial subjects Biographies) since Han.

Li (禮, morals or ritual propriety) has become the base of penalty system and legislative principles since Sui and Tang. Male lineal ascendants are endowed with the rights of ruling and educating descendants (教令權). According to the law, as long as the instructions are disobeyed or the maintenance is insufficient, penal punishment is applied to the descendants. The code not only combined Li and penalty, but also promotes the practice of filial piety. However, as time gone by, is filial piety still an eternal idea or an absolute obligation? How do we comprehend this ethic idea essentially and make it correspond with the penal legislation more appropriately?

Basing on Tang Code, Ching Code and the historical material of late Ching legal reform, this paper shall discuss the traditional ideas and offenses aforementioned. Moreover, the author would take the legislations of Germany and Japan as study examples in the view of comparative law. In the end, this article would like to study the transform and rebirth of current legal ethics in the 2010 Amendment of Article 294-1, Criminal Code of Taiwan.

KeywordsConfucianism, Traditional Chinese Legal System, Filial Piety, Maintenance Lack, Abandonment of Lineal Ascendant

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Confucianism Thought of Bai Jü Yi’s Bai-Dao Legal Precedent

Chen, Den-Wu

Abstract

The so-called “Pan” was one of the examination subjects in T’ang Dynasty. The questions of the “Pan” were usually formulated from the lawsuits or historical affairs in the historical literatures.

Written by Bai Jü Yi, “Bai-Dao” legal precedent was an exercise in composition after he passed the preliminary but before he attended the final examinations held by the Judiciary. This legal precedent Let us have the opportunity to understand the verdicts of the Tang Dynasty.

This paper discuss the lawsuit cases about “Mourning”、“Marriage”、“Hereditary peerage”、“Court etiquette”、“Officer”、 “Revenge” that involved the order of Confucianism.Through analysis the lawsuit cases,we can understandthe order under the Confucianism of Bai Jü Yi.

Overall, In the event that the lawsuit cases were originated from the scripture of the Confucianism, Bai Jü Yi’s attitude was apparently in accordance with the instructions given by the Confucianism.Even though there have been instances with propriety into Law, Bai is still only on the ceremony, showing that he is more concerned about the meaning of propriety, rather than de jure illegal demonstration.

Keywords: The history of a legal system, Bai Jü Yi, Bai-Dao legal precedent, the order under the Confucianism, Confucianism

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Confucianism and the legal system in Qing dynasty – the legal history point of views

Chen, Hwei-Syin

Abstract

This paper discusses the theorie of the Confucianism about three bonds relationship. (monarch and his subjects, father and son, husband and wife) and the legagl system in the Qing Dynasty. The first part of the paper analyzes the subjects of the Examination in the Qing, the four books: 孟子mencius論語The analects of Confucius大學university中庸moderation and their discussion about the three bonds relationship. The second part of the paper explore the "ten evils system "in the great Qing legal code and the execution of the ten evils system. The third part analysis the education system、the examination system and the honours system in the code for Ministry of Rites in Qing Dynasty. The fourth part of the paper analyzes the legal reform in the late Qing dynasty and the change and the dilemma during the time and how the important official express their opinion about the legal reform. Finally, the paper explore the Significance and Inspiration of the Confucianism for the contemporary Taiwan society.

Keywords:Confucianism, Three Commands and Five ethik, The Ten Abominations,code for Ministry of Rites , great Qing legal code

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An Analysis of the Increase and Decrease in the Death Penalty Articles and the Death Penalties in Qing Code

Min, Dong-Fang

Abstract

The number of death penalty articles specified by Shun Zhi Lv was 135 and the number of various death penalties totaled 223. The number of death penalty articles specified by Yong Zheng Lv increased to 158 and the number of various death penalties increased to 407 accordingly. By the fifth year of the Reign of Qian Long, the number of death penalty articles specified by the Da-Qing-Lv-Li decreased to 152 while the number of various death penalties rose to the level of 444. During the ninth year of the Reign of Tong Zhi, the number of death penalty articles specified by the Da-Qing-Lv-Li peaked at 162 and the number of various death penalties increased to 772 as a result. The death penalty of Qing Code focused primarily on homicide and property cases. The rise and fall in the number of death penalty articles in Qing dynasty were quite complicated and the increase in the number of death penalties did not necessarily mean the increase in the number of death penalty imposed by the authorities. It suggests that any study on the historical background of the death penalty imposed by the authorities should be carried with great caution and hasty conclusions should never be encouraged.

Keywords: Qing Code, death penalty articles, number of death penalties

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The Property Crime Cases of Qin and Han Dynasty Collected in Zou Yan Shu

Chang, Ming

Abstract

Among the 22 cases collected in the judicial case anthology: Zou Yan Shu, unearthed from the Han tomb at Zhang Jia Shan, 20 of them are qualified as formal judgments. These rare historical materials related to abscondence, adultery, homicide, malfeasance, and property crimes compiled to be the judical models for the judges of early Han could be the actual trail records of Qin and Han.

The property crime cases of Zou Yan Shu provide abundant judicial information of Qin and Han which could be compared with the legal provisions contained in Shui Hu Di, Long Gang and Zhang Jia Shan bamboo slips. Basing on the legal and judicial materials aforementioned, through legal and historical research methods, this article shall identify the character of Zou Yan Shu, and clarify its position in the legal source system of Han.

KeywordsQin, Han, bamboo slips, Zhang Jia Shan, Shui Hu Di, Long Gang, Zou Yan Shu, property crime, judicial history

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Research on「Permission for Leave」In Yuan Dynasty From Legal Perspective

Bu, Qing-Rong

Abstract


Yuan Dynasty was the regime established by the Mongolian. The regime has begun applying the institution of「Permission for Leave」from Tang and Song Dynasties before Kublai Khan established「Da Yuan」. And after occupied Beijing, It created some new provisions of「Permission for Leave」. The legal culture of the Han nationality was absorbed selectively and The traditional confucianism was weakened In Yuan Dynasty. The institution of「Permission for Leave」in Yuan Dynasty also learned from the culture of the Mongolian and had powerful influence to the administrative legal system of Ming-Qing Dynasty and ancient Koryo Dynasty.

Keywords:Permission for Leave, One day vacation every seven days, The birthday of Yuan Dynasty

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The Difficult Position of Assumption, Standpoint and Function Approach: Rethinking Qu Tongzhu’s Research

Deng, Jian-peng, Liu, Xiong-tao

Abstract

In the preface of his Law and Society in Traditional China of the first edition, Qu Tongzhu analyzed traditional law and society based on his assumption that the social structure maintained almost the same since Han to Qing dynasty. Although such declaration no longer existed in the new edition after 1981, the classic book still enjoyed the assumption. The assumption missed some obvious and important changes during Chinese history. Led by the structure functionalism, Qu Tongzhu also did not pay attention to motivation and aim of law in this book. As a result, the method aboove affected his four books’ some contents and conclustions incorrectly.

Keywords:  Qu Tongzhu, Law and Society in Traditional China, Assumption, Diversity

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中國法制史學會、中央研究院歷史語言研究所主編

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